General Terms and Conditions of ASERVO Software GmbH for Commercial Business
I. Validity and subject matter
1. These General Terms and Conditions shall apply exclusively to companies, legal entities under public law and special public funds. These General Terms and Conditions shall govern the provision or execution of all current and future services and deliveries by contractual parties.
2. ASERVO Software GmbH shall deliver or perform exclusively under the following conditions. ASERVO Software GmbH shall not recognise any conflicting purchasing or other conditions on the customer side.
3. No verbal ancillary agreements have been concluded by the contractual parties. Any subsequent amendments or additions to concluded agreements shall require written form. A verbal waiver of written form shall be ruled out.
4. The particular services and deliveries shall be determined in independent agreements concluded on the basis of these General Terms and Conditions.
5. Offers of ASERVO Software GmbH shall always be non-binding and subject to change. Orders shall only be deemed accepted following receipt of a written confirmation from ASERVO Software GmbH.
6. The right to make technical and design deviations from descriptions and details in brochures, catalogues and written documents as well as model, construction and material changes during the course of technical developments or changes to the market situation shall remain reserved, without the customer being able to derive any rights against ASERVO Software GmbH from this.
7. ASERVO Software GmbH shall reserve all property rights and copyrights for samples, drawings, cost quotations, etc., including in electronic form. They may not be made available to third parties without approval and must be returned without delay upon request.
II. Payment terms
1. Software shall be provided for an unlimited period of time against a one-off payment or the payment of a regular fee. The selection made by the customer shall be listed in the service specification document. All prices shall apply from the place of business of ASERVO Software GmbH.
2. If usage fees are calculated based on scaled charges, they shall be based on the number of installed screen workspaces, which are categorised in usage classes. If a switch is made to a higher usage class, the respective fee rate shall be due from the time of the switch. The customer shall be obliged to inform ASERVO Software GmbH without delay about any switch.
3. Costs related to special services or services required due to incorrect or incomplete customer details or non-verifiable defect claims or improper system use shall be borne by the customer.
4. All prices exclude the legally applicable VAT rate that was valid at the time when the contract was concluded. If ongoing payments are owed, the VAT rate applicable at the time when the claim is due shall be decisive.
5. ASERVO Software GmbH shall be authorised to increase the regular usage fees by informing the customer in writing with a notice period of three months. If fees are increased by ten percent, the customer shall be entitled to ordinary termination of the contract subject to adherence with notice periods. A period of at least six months must exist between two increases.
6. Data carriers and other accessories shall be charged for by ASERVO Software GmbH separately using the respective list prices.
7. All payments shall be paid without deductions when due. ASERVO Software GmbH shall also be entitled, notwithstanding other amortisation provisions of the customer, to set off the latter’s payment against its oldest debt initially. If costs and interest already exist, ASERVO Software GmbH shall be authorised to set off the payments against the costs initially, then the interest and finally the main service.
8. Payment shall be due on the agreed due dates or upon delivery.
9. The customer may only offset claims of ASERVO Software GmbH with those counterclaims that have been legally established or are undisputed.
10. All quoted prices and day rates are valid exclusive expenses and travel cost.
11. Rights of retention of the customer shall be ruled out.
III. Retention of title
1. Contractual services shall remain the property of ASERVO Software GmbH until complete payment of the agreed price has been made. This shall also apply to program samples that are stored on data carriers or transferred online, as well as to all accompanying material.
If only usage rights are granted for software, the above rule shall apply to the respective data carriers.
2. The customer shall be entitled to process or change the goods subject to retention of title in the ordinary course of business or otherwise adjust them to its requirements provided the customer is not in default and this is not contrary to the licence terms of ASERVO Software GmbH. Pledges or transfers of security shall not be permitted. In the event of the resale of goods subject to retention of title, the customer shall already assign the claims arising from the resale now in the amount of the net invoice amount.
ASERVO Software GmbH shall hereby accept the assignment. Should ASERVO Software GmbH share title to the resold goods subject to retention of title, the assignment of claims shall be restricted to the amount corresponding to the value of the title share of ASERVO Software GmbH. If the assigned claim is included in a current invoice, the purchaser shall already assign a portion of the balance corresponding in amount to this claim, including the closing balance, from the current account to ASERVO Software GmbH, which accepts it. Should an assignment in the meaning of the above provisions not be possible for the customer, in particular on account of higher priority assignments to third parties, the resale shall not take place in the ordinary course of business in the meaning of this regulation. ASERVO Software GmbH shall authorise the customer in a manner revocable at any time to collect the claims assigned to ASERVO Software GmbH for its own account in its own name. On being called on to do so by ASERVO Software GmbH, the customer shall disclose the assignment and submit the corresponding information and documents required. The right to resale and use of the goods subject to retention of title and the authorisation to collect assigned claims shall lapse with the cessation of payments, application for and opening of court insolvency proceedings or out-of-court composition proceedings.
3. In the event of access by third parties to goods subject to retention of title, for example in the event of attachment, the customer shall draw attention to the title of ASERVO Software GmbH and inform the latter immediately. The customer alone shall bear the costs and any losses in full.
4. In the event of conduct in breach of the agreement by the customer, especially for example in the event of default of payment, ASERVO Software GmbH shall be entitled to repossess the goods subject to retention of title at the expense of the customer or if applicable to demand assignment of the claim to restitution of the customer vis-à-vis the third party. Subject to the application of contradictory statutory provisions, the repossession and attachment of the goods subject to retention of title by ASERVO Software GmbH shall not constitute any rescission of the agreement.
5. Processing or transformation by the customer shall always occur for ASERVO Software GmbH, but without obligation for it. If the title or shared title of ASERVO Software GmbH lapses through combination, it shall already apply upon signing the agreement that the title or shared title of the purchaser to the unitary item passes as a proportion of the value (invoice value) to ASERVO Software GmbH. In this case the customer shall preserve the title or shared title of ASERVO Software GmbH free of charge.
IV. Default of payment
1. Should the customer get into payment arrears, ASERVO Software GmbH may repossess the software and dispose of it otherwise irrespective of all other rights.
2. Moreover, ASERVO Software GmbH may demand interest amounting to 4.5% above the current discount rate of Deutsche Bundesbank unless the customer proves that ASERVO Software GmbH has not sustained any loss or a much lower loss.
V. Delivery and intended quality of the goods
1. The programs to be supplied shall be transferred on data carriers to be specified in the service specification document.
2. Delivery and passage of risk shall occur upon transfer of the programs, including accompanying material, to the customer. Upon dispatch, the risk shall pass to the customer as soon as the shipment has been transferred to the person carrying out the transport by ASERVO Software GmbH. Should the dispatch be delayed or rendered impossible without ASERVO Software GmbH being at fault, the risk shall pass upon the notification of dispatch readiness being sent to the customer to the latter. Insurance of the goods against transport damage shall only occur upon the express desire and at the expense of the customer.
3. The dates and periods stated by ASERVO Software GmbH shall be non-binding unless otherwise expressly agreed in writing. Moreover, all delivery dates are subject to the correct and prompt supply of ASERVO Software GmbH. They shall begin with the day of the order confirmation by ASERVO Software GmbH and be extended by the time in which the customer is in default of payment, subject to all rights of ASERVO Software GmbH.
4. The customer shall be obliged to accept the software on the agreed date.
5. Partial deliveries shall be permissible provided their acceptance is not associated with unreasonable expenses for the customer.
6. Objects supplied by ASERVO Software GmbH for test purposes (such as data carriers, accompanying material, etc.) shall remain the property of ASERVO Software GmbH.
7. Should the customer fail to meet its duties of cooperation pursuant to section VII on time, the periods of delivery and performance shall be extended accordingly. Should the customer continue not to meet its duties of cooperation despite the setting of a deadline and the threat of termination, ASERVO Software GmbH may terminate the agreement while being released from its obligation to perform. Moreover, in this case ASERVO Software GmbH shall be entitled to submit an invoice for all expenses that have arisen up to the time of termination.
8. ASERVO Software GmbH shall not be responsible for delivery and performance delays due to force majeure or on account of events that significantly impede delivery or render it impossible, such as material procurement difficulties, operational disruptions, labour disputes, official orders, etc., even if they occur at or among suppliers of ASERVO Software GmbH and even in the case of bindingly agreed deadlines and dates. They shall entitle ASERVO Software GmbH to postpone the delivery or service by the period of the hindrance plus an appropriate start-up period or to rescind the agreement in part or as a whole on account of the not yet completed portion of the service.
9. ASERVO Software GmbH shall only be in default once the customer has set it a period of grace of at least four weeks in writing. In the event of default, the customer shall be entitled to default compensation amounting to 0.5% for each completed week of default, at the most, however, up to 5% of the invoice value of the deliveries and services affected by the default. Additional claims, especially claims for damages, shall be ruled out.
10. The intended quality of the goods shall adhere to the statutory guidelines and, if applicable, the supplementary contractual agreements. Public statements, recommendations or advertising of ASERVO Software GmbH or of the manufacturer shall not represent any binding quality statement regarding the goods.
11. Unless expressly agreed, agreements on qualities shall not involve guaranteed characteristics of the goods. The sample shall only apply as a demonstration piece even in the event of sale according to samples, in order to present the general character or type of the goods. Subject to express agreements, the properties of the sample shall not be guaranteed.
VI. Liability for defects
1. In line with the current state of technology, errors in EDP programs can never be ruled out completely. The customer shall take note of this circumstance. ASERVO Software GmbH shall guarantee that the products are free of manufacturing and other defects that impair use. The period of limitation shall be a year for the contractual product if the delivery of the defective goods does not represent any deliberate breach of obligation.
2. If ASERVO Software GmbH transfers standard software of third parties to the customer, their guarantee declarations shall be part of this agreement. In this case, the customer shall also be at liberty to assert claims from this guarantee declaration vis-à-vis the third party. ASERVO Software GmbH shall exclude any liability for defects and other liability, if legally permissible, which goes beyond the content of the declaration of this third party.
3. The customer shall inform ASERVO Software GmbH immediately of the occurrence of defects with a brief description of the defect. The company shall be obliged to investigate the software delivered for obvious defects, which an average customer would normally notice automatically. ASERVO Software GmbH must be notified of such obvious defects and considerable, easily visible damage to power parts in writing within a week of delivery, and they must be criticised as defects. If only screenshots are detectable as defects, notification of these must be provided in writing as precisely as possible.
4. ASERVO Software GmbH shall eliminate defects that have been communicated and are reproducible in an appropriate period by transfer and installation of a new program version.
5. If defects that have been communicated cannot be identified upon examination, the customer shall bear the costs of the examination. This shall also apply if defects can be identified but are attributable to defective operation or faults for which ASERVO Software GmbH is not responsible.
6. Should the customer alter or expand programs or parts of the program or have such alterations or expansions carried out by third parties, the liability for defects shall lapse unless the customer succeeds in proving that the particular change or expansion did not cause or contribute to the defect.
7. ASERVO Software GmbH shall not take responsibility for errors, disruptions or damage attributable to improper operation, the use of improper auxiliary equipment or non-standard operating conditions.
8. If the alterations or expansions lead to additional expense for ASERVO Software GmbH while looking for or eliminating defects, the customer must bear this additional expense.
9. The customer may only assert claims exceeding subsequent performance, after the subsequent performance has failed a second time. If the subsequent performance attempts of ASERVO Software GmbH (especially as part of version changes) remain unsuccessful and unreasonable disadvantages for the customer stand in the way of the assumption of further program versions, the customer shall be entitled to reduce the counter-performance or – in the case of considerable defects – to rescind the agreement. Use by the customer up to this time must be reimbursed to ASERVO Software GmbH by the customer before repayment of the purchase price. In this respect, ASERVO Software GmbH shall have a right of retention.
10. The contractual liability for defects shall be limited to one year from transfer or acceptance if this was agreed. Subsequent performance shall occur solely in fulfilment of the guarantee obligations for the original goods. Notwithstanding the guarantee rights of the customer with regard to the first delivery, in the event of defective subsequent performance no guarantee rights shall arise for the subsequent performance and the guarantee period shall not be initiated anew.
11. This shall not affect the customer’s commercial rights of examination and complaint.
VII. Liability, customer obligations
1. The liability shall be unlimited for damage brought about by ASERVO Software GmbH or its agents and auxiliaries with intent or through gross negligence. However, ASERVO Software GmbH shall only be liable for ordinary negligence in the event of loss of life, physical injury or health impairment and in the event of a breach of the obligations essential to the fulfilment of the contractual purpose.
If ASERVO Software GmbH is liable on account of breaches of obligation relating to essential contractual obligations due to ordinary negligence, its liability shall be restricted in amount to the typical damage arising in agreements of this kind that was foreseeable upon conclusion of the agreement or at the latest when the breach of obligation occurred. This shall not apply in the event of loss of life, physical injury or health impairment. Claims to damages that by law do not require any fault shall remain unaffected by the provisions in paragraphs (1) and (2).
2. In addition, the requirement for liability for data reconstruction is that backup of the data of the customer was sufficiently up to date and complete and that reconstruction is possible at reasonable expense. This shall not affect claims based on tort or statutory liability.
3. The customer shall treat all information on the software, methods and procedures used for their production and all documents belonging to the program, their content, data carriers and associated correspondence as confidential for the entire duration of use and after its termination and not make them accessible to any third parties. The customer shall also subject its employees to corresponding obligations.
4. Moreover, the customer shall take the precautions necessary to prevent unauthorised access or access by third parties to the programs.
5. This obligation shall also apply to customers or other contractual partners of the customer and to consortiums, subsidiaries and branches of its company.
6. The customer shall undertake to create all the conditions required for the implementation of the contractually agreed services of ASERVO Software GmbH free of charge. Among other things, these conditions shall include that the customer provides work rooms for the employees of ASERVO Software GmbH including all work equipment as required to a sufficient extent, grants ASERVO Software GmbH unhindered and sufficient computing time with the necessary priority as required, provides test data and other information and aids required for production of the work on time, performs the operating and system maintenance (operating systems, etc.), makes employees from its area (contact persons from the departments, data recorders, office personnel) available to ASERVO Software GmbH for support.
7.On the request of ASERVO Software GmbH, the customer shall conduct formal acceptance of the target concepts, organisational concepts, organisational proposals and programs immediately after delivery or creation at the customer’s premises. Acceptance shall be deemed to have occurred if the customer has not yet begun with acceptance within one month of transfer, if the customer uses the software transferred to it, if a month has passed after transfer of the target concept, the organisational proposal or the software without the customer having provided notification of significant defects that impair usability or if the customer or a third party intervenes in a program transferred without the prior written approval of ASERVO Software GmbH.
8. ASERVO Software GmbH shall reserve the right to be able to request access to the programs at any time during normal hours of business in order, if necessary, to make a copy of the program. The customer itself shall be responsible for drawing up the specifications underlying program development in the absence of divergent agreements.
The customer’s signature on the specifications shall confirm the binding nature of the specifications for the various levels of program development, especially with regard to the completeness of the working functions, quantities and time information required for an application. The customer shall bear unlimited liability for breaches of this contractual obligation.
This liability shall extend to the unauthorised use of program copies made in breach of the agreement, such as multiple use or transfer to third parties. The customer shall cooperate on time and to the extent needed in the service provision by ASERVO Software GmbH. ASERVO Software GmbH shall draw the attention of the customer to the corresponding duties of cooperation in good time.
9. The contractual partners shall undertake mutually not to poach any current or former employees during or after performance of the agreement themselves or through third parties.
10. If ASERVO Software GmbH has to process personal data during its work on the contractual software, ASERVO Software GmbH shall comply with the applicable data protection law and take or agree necessary security measures with the customer.
11. In the event of resale of the software acquired, the customer shall be obliged to communicate the name and complete address of the purchaser of the software in writing to ASERVO Software GmbH.
VIII. Intellectual property rights, exemption
1. ASERVO Software GmbH shall remain the holder of all rights to the software transferred to the customer or all rights to parts of this software, including the particular accompanying material, unless otherwise agreed. This shall also apply if the customer alters the software to the contractually permissible extent or combines it with its own software or that of a third party.
2. The customer shall not remove existing identifications, intellectual property markings or notifications of ownership of ASERVO Software GmbH in the software but if necessary also adopt them in copies made.
3. ASERVO Software GmbH shall exempt the customer from all claims of third parties against the customer from the infringement of intellectual property rights in the programs developed and transferred by ASERVO Software GmbH in their contractual version. Establishment of this liability shall require that the customer does not provide any written or oral declarations on the breach of intellectual property vis-à-vis the third party, and in particular does not acknowledge any rights or facts and does not assume any liability. Moreover, the customer may not have combined the software with third-party software without the prior written approval of ASERVO Software GmbH and may under no circumstances have made use of the software contrary to the provisions.
4. ASERVO Software GmbH shall be entitled to carry out software alterations on account of intellectual property right assertions of third parties at the customer’s premises at its own cost. The customer may not deduce any contractual rights herefrom. The customer shall notify ASERVO Software GmbH immediately and in writing if it is notified of an infringement of intellectual property rights and copyrights by a product supplied by ASERVO Software GmbH.
5. Unless otherwise agreed, the customer may only use the software for its own purposes. Simultaneous use of the program on several computers shall in particular require special contractual agreement.
6. The customer may only make copies of the program transferred to it or of parts of this program for backup purposes. Copying of documents transferred, such as documentation, instructions for use, etc., shall only be permissible with the prior written approval of ASERVO Software GmbH.
7. The customer shall be liable to ASERVO Software GmbH for all damage arising from the breach of the above-mentioned obligations.
IX. Assignment of rights
1. The customer can only assign rights from the agreement to third parties with the prior approval of ASERVO Software GmbH.
2. ASERVO Software GmbH shall be entitled to transfer all obligations incumbent on it and rights to which it is entitled from the agreements to third parties. It shall take care that the customer does not incur any disadvantages as a result.
3. ASERVO Software GmbH shall in addition be entitled to have all obligations carried out by third parties on its behalf. In this case, ASERVO Software GmbH shall continue to guarantee proper fulfilment of its contractual obligations vis-à-vis the customer as the contractual partner and the customer shall accept the service rendered as a service of ASERVO Software GmbH.
X. Contractual term, termination
1. The term of the agreement shall be determined in each case in the individual agreement concluded on the basis of these General Terms and Conditions.
2. Declaration of termination or rescission by the customer shall require that an agreed and prolonged delivery or service obligation was exceeded and that a period of grace set by the customer, which was appropriate according to the type, scope and degree of difficulty of the delivery and service due, has expired without success.
XI. Utilisation of personal data
If ASERVO Software GmbH collects personal data of contact persons etc. of the customer, this will be used exclusively for the purpose of processing the contract related to the respective supply relationship.
XII. Place of performance and jurisdiction
1. The place of performance for all contractually agreed services is the place of business of ASERVO Software GmbH.
2. If the customer is a businessman, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is the place of business of ASERVO Software GmbH. The same applies if the customer has no general place of jurisdiction in Germany or its domicile or habitual residence is not known when the suit is filed.
XIII. General contract terms and conditions
The laws of the Federal Republic of Germany apply.
The UN Convention on Contracts for the International Sale of Goods is excluded.